An important dimension of the Senate’s consideration of Judge Brett Kavanaugh’s nomination for the Supreme Court involves the judge’s views of a president’s immunities from legal process such as criminal indictment and prosecution. However one comes out on the separate question of the importance assigned to these views in the vote on confirmation, it is vital to get straight what his views are. That requires a faithful reading of his writings and complete testimony and answers to questions from the judge himself during the nomination process. As the process begins, however, some commentators have sought to minimize the significance of the sweep of Kavanaugh’s writings on the subject of presidential immunities. That these commentators—Noah Feldman, Asha Rangappa, and Benjamin Wittes—are distinguished and influential in the public debate make it all the more important to counter their claims.
It may be helpful at the outset of this comment to state clearly what we are not saying. We are not suggesting here that Kavanaugh is unqualified to sit on the Supreme Court, or that the positions he has taken on the question of presidential immunities would operate per se to disqualify him. The issue under discussion may simply present the narrower—yet highly important—question of what Kavanaugh has to say about the conditions under which he would recuse himself from any case involving criminal investigations that implicate the president. What he will conclude about his recusal obligations may turn out to be of great significance to the Court and the Trump presidency.
The recent Feldman, Rangappa, and Wittes commentaries have mistakenly suggested that concerns about Kavanaugh’s views on this topic are ill-placed. They have come to focus in particular on what the judge has written about independent investigations of the executive branch and on the role of Congress in resolving the question of a president’s amenability to legal process. On the first point they have noted that, as Kavanaugh has stated the point, he favors “some mechanism… in some cases” for the appointment of a prosecutor outside of existing Department of Justice personnel. On the second, Kavanaugh has written that it should fall to Congress to protect the government from the disabling effects of criminal prosecution of a sitting president by passing a law prohibiting indictment while in office. It is Kavanaugh’s case for Congress’ role that, from the perspective of these commentators, should assuage concerns that as a Justice he would be predisposed to find that the Constitution itself insulates the president from legal accountability while in office.
It is evidently the intention behind these arguments to put to rest concerns that Kavanaugh has prejudged any of the issues that could arise in the Trump matter — such as the president’s decision to refuse compliance with a subpoena, or perhaps any subsequent challenge to Robert Mueller’s appointment. These arguments, however, are not persuasive in resolving well-founded concerns, and they do not adequately prepare Senators or the public more generally to answer the question of what it means for the Court if a Justice Kavanaugh faces a recusal question.
First, while it is true that Kavanaugh supports some special counsel investigations, he would very specifically and most profoundly exempt the president from them. Indeed, as we describe more fully below, Kavanaugh would go much further in exempting the president not only from prosecution and indictment, but also from Department of Justice investigations while in office — and not only investigation, but also depositions or questioning in civil litigation or criminal investigations. Under Kavanaugh’s proposal for a revamped prosecutorial structure, the president could nominate a special prosecutor to investigate alleged wrongdoing in the executive branch, but the president could never be one of the investigation’s targets. He writes that a special counsel “should never be appointed to prosecute the president (because a sitting president should never be subject to criminal indictment until he leaves office or is removed by impeachment proceedings).”
So Judge Kavanaugh’s embrace of “some mechanism” for special counsel investigations, but only a mechanism that leaves out the president, will not allay concerns about his pro-executive bias on these questions. And it is incorrect to claim, as Wittes has, that Kavanaugh’s scholarship “makes a strong prudential case for independent investigations of the President and other high officials”—Kavanaugh has written very explicitly and at length that he would place a president above any such law.
What’s more, Kavanaugh’s proposals for a reform of the independent counsel arrangement would leave the president with unfettered authority to protect his own administration from accountability under the law. The special counsel could be appointed only on the nomination of the president; the president would not be required to appoint a special counsel; and if the president does appoint one, the president would remain fully involved in all decisions about the prosecutor’s jurisdiction and could remove the special counsel at will without cause (for any reason or no reason). What’s to stop a president from abusing such blanket authority? Kavanaugh puts great confidence in public opinion and Congress’s good judgment to insulate this arrangement from sordid self-interest. He would give the president the power and hope for the best from the politics–and politicians. In the polarized politics of our times, this does not seem a safe bet.
Wittes writes, in apparent error, that Kavanaugh was taking an unpopular position at the time because Kavanaugh was saying that “some independent counsel law remained necessary.” But Wittes does not mention another piece Kavanaugh wrote a year later, in which he asserts that “the blame lies squarely on the independent counsel statute itself…. Yet another reason to end this statute and revert to a system more closely resembling the tried-and-true discretionary system of administration-appointed special prosecutors.” Indeed, the features of Kavanaugh’s proposed statute denude the term “independent counsel” of meaning—it is no longer an “independent counsel law” when the President has such full control over appointment and removal. Indeed, even Kavanaugh himself admitted in his 1998 law review article that the use of “the term [independent counsel] would be inappropriate under the regime proposed here because ‘independent’ connotes a counsel appointed outside the Executive Branch.” And as Kavanaugh also wrote in that article, he was in the popular company of many others who decried the independent counsel statute but also saw room for the Executive Branch to pick someone outside the Department of Justice for special prosecutions in some cases.
Then there is the central question about Kavanaugh’s views of the amenability of the president to legal process while in office as a matter of constitutional law. It seems very apparent from Kavanaugh’s writings that he has second thoughts about Clinton v. Jones and the propriety of the Court’s decision in that case involving civil litigation. In that regard he is not alone. But one cannot accurately claim, as Rangappa wrote, that Kavanaugh has remained “agnostic” on these constitutional questions.
It is striking that Kavanaugh’s assessment of the issues of criminal indictment are fully consistent with the reasoning of Office of Legal Counsel (OLC) opinions holding that a sitting president cannot, as a constitutional matter, be indicted in office. It is not simply that Kavanaugh believes exposure to indictment is unwise because it would be a crippling blow to the conduct of government (on his account). He makes very clear that this policy perspective is grounded in constitutional considerations — which is precisely how the OLC came to its (mistaken) conclusion.
So Judge Kavanaugh writes:
The Constitution of the United States contemplated, at least by implication, what modern practice has shown to be the inevitable result. The Framers thus appeared to anticipate that a President who commits serious wrongdoing should be impeached by the House and removed from office by the Senate—and then prosecuted thereafter. The Constitution itself seems to dictate, in addition, that congressional investigation must take place in lieu of criminal investigation when the President is the subject of investigation, and that criminal prosecution can occur only after the President has left office.
It is hard to read this passage in any way other than to suggest that the “policy” he favors is the one that the Constitution of the United States “contemplated” — indeed “seems to dictate.” Like OLC, he is effectively reading the policy into the overall Constitution design, with the result that the best policy is, at the same time, the right constitutional outcome.
It is also not just a single passage where Kavanaugh strongly signals his constitutional leanings. The passage is followed by a lengthy discussion that includes treatment of original understandings at the constitutional convention, the Federalist Papers, and the position on the constitution law question taken by Robert Bork as Solicitor General, Leon Jaworski as Watergate’s special prosecutor and a federal judge in the case of Nixon v. Sirica. Kavanaugh sums up one section of his analysis in saying “Thus, as the Constitution suggests, the decision about the President while he is in office should be made where all great national political judgments in our country should be made-in the Congress of the United States.”
Notably, Rangappa’s discussion contending that Kavanaugh has remained agnostic on the constitutional law question omits the 1998 law review article in her analysis. And Feldman writes, “Although Kavanaugh didn’t expressly say that a sitting president may constitutionally be indicted, it is a plausible implication of his article.” Neither of those positions — that Kavanaugh has remained agnostic on the question or that his writing implies he believes the Constitution allows the indictment of a sitting president — is sustainable. Wittes writes, “I suppose it is possible to worry that Kavanaugh’s stated policy preferences with respect to congressional action tease his likely judicial holdings on those subjects.” That significantly minimizes and overlooks what Kavanaugh has said, directly and indirectly, about the constitutional question in these law review articles.
This history does not square with the suggestion that, because Kavanaugh has proposed that Congress enact a protection against prosecution of a president while in office, he is “implying” that there is no constitutional basis for this immunity. There is no need to look for “implications” when the judge has embraced just such a constitutional rationale. Moreover, it “implies” little to argue for a congressional enactment in the first instance. If Congress does not act—and there is absolutely no likelihood that it would ever do so—the courts would in no way be hindered in reaching the same result as a matter of constitutional interpretation. That is indeed exactly what OLC did in 1973 and 2000.
(As a side note: Feldman goes even further contending that an “implication [of these law review articles] is that Kavanaugh may not accept the late Justice Antonin Scalia’s view that the Constitution bars the appointment of an independent counsel … [which] in turn, marks him as less of an executive-power extremist than Scalia.” But in a bulky footnote in his 1998 law review article, Kavanaugh cast significant doubt on the Supreme Court opinion upholding the independent counsel statute, the opinion from which Scalia dissented. And in a judicial opinion in 2016, Judge Kavanaugh unequivocally embraced Scalia on this point writing, “the independent counsel experiment ended with nearly universal consensus that the experiment had been a mistake and that Justice Scalia had been right back in 1988 to view the independent counsel system as an unconstitutional departure from historical practice and a serious threat to individual liberty.”)
What’s more, Kavanaugh also strongly indicates that his objections to indictment also lie against investigation. In both cases, he projects a “disabling” of the presidency that would be a highly undesirable outcome and counsels in favor of staying the prosecutor’s hand. In his 2009 Minnesota Law Review article, the judge specifically links the problematic features of criminal process to both indictment and investigation. He writes: “The point [of deferral of prosecution] is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of out of office.” He follows shortly thereafter with a footnote again setting out as his personal judgment, “I think this temporary deferral also should excuse the President from depositions or questioning in civil litigation or criminal investigations.”
Whether Judge Kavanaugh is right or wrong in his policy or constitutional judgments is beside the point. He has quite clearly declared his position on specific issues already in play in a criminal investigation that directly affects the president. The question of his recusal from participation if those issues come before the Court could hardly be more squarely, plainly presented.
This recusal question does not just arise in the normal course, as it might (and has) for many new Justices. Rule-of-law controversies have virtually defined this Administration as the president demands “loyalty” from senior law enforcement officials, insists on immunity from obstruction of justice charges, and boasts of the “absolute” power to pardon anyone for any reason, including himself. He has aggressively staked out these positions, with full support from his legal team, in the context of an unprecedented investigation into a foreign power’s intervention on his behalf in the last election. It is in these extraordinary circumstances that the Senate will examine Judge Kavanaugh’s well-developed and strong views on the criminal prosecution of presidents, which are consistent with (if considerably more sophisticated than) those of the president under investigation who has nominated him. The issue of those views and whether they compel recusal will require thorough exploration.
The Supreme Court has declined to adopt formal recusal rules and leaves the choice entirely to the discretion of individual Justices, who are also not obligated to explain the reasons. If a Justice Kavanaugh were not to recuse on, say, the question presented by the president’s refusal to comply with a special counsel subpoena for his testimony, and he voted with the president in a close vote, it is not hard to imagine the threat to the Court’s credibility. Moreover, by court practice, he would not explain the reasons why he elected not to recuse, which would inevitably exacerbate suspicions. If, however, the he did recuse, and the vote turns out to be 4-4, his absence would render the Court powerless to decide a case of historic significance. (We could imagine that the Court would go out of its way not to have a case like this resolved by one vote or deadlocked. But, as Bush v. Gore showed, things don’t always turn out as we might have imagined.)
These are among the issues that Senate would have to confront in their questioning of Judge Kavanaugh. In another posting, we will consider the specific questions that may be put to the nominee and the issues raised by the answers that Judge Kavanaugh might give—or decline to provide.
Originally published by the Just Security, New York University School of Law, under a Creative Commons Attribution-No Derivs-NonCommercial license.